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Entire agreement clauses – do they exclude misrepresentation?

An entire agreement clause is intended to give contracting parties certainty as to the terms of their contract. This is the agreement, and nothing else, is the message but questions as to whether the clause excludes misrepresentation and whether the Unfair Contracts Terms Act applies, can spoil the certainty. The answers to these questions in Axa Sun Life v Campbell Martin naturally depended on the precise entire agreement clause wording and on the construction of the whole agreement, but, in concluding that the relevant clause did not exclude misrepresentations, the Court of Appeal said that exclusion of liability for misrepresentation must be clearly stated. This can be done by clauses stating the parties’ agreement that there have been no representations made, or no reliance on any representations, or by an express exclusion of liability for misrepresentation.

And although the entire agreement clause was not the type of exemption clause that UCTA targets, since, in appropriate circumstances, a pre-contractual representation or promise might affect the performance “reasonably expected” of a party, the clause might be subject to UCTA and the reasonableness test.

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